the company for habitat and housing in africa shelter afrique vs integrated property investment t and 2 others 2022 tzhccomd 2 11 january 2022

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT DARES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 91 OF 2021 (Arising from Miscellaneous Civil Application No. 168 of 2020) THE COMPANY FOR HABITAT AND HOUSING IN AFRICA (SHELTER AFRIQUE).................................................. APPLICANT VERSUS INTEGRATED PROPERTY INVESTMENT (T) LIMITED .. 1st RESPONDENT OMARI ABDI ALI.................................................... 2nd RESPONDENT SULEIMAN ABDI DUALEH ..................................... 3rd RESPONDENT RULING OF THE COURT K.T.R. Mteule 6/10/2021 & 11/01/2022 This Chamber application is made under Section 5 (1) (c) of the Appellate Jurisdiction Act (CAP 141 R.E 2019), Rule 45 (a) of the Court of Appeal Rules, 2009 seeking for the following Orders: - 1. This Honourable Court be pleased to grant the Applicant leave to appeal to the Court of Appeal of Tanzania against the Ruling and Order of the High Court of Tanzania (Commercial Division) at Dares Salaam (Hon. Fikirini, J.) (as she then was) delivered on 3 June 2021 in Miscellaneous Commercial Application No. 168 of 2020. 2. Costs of this Application abide the outcome of the intended appeal 3. Any other relief (s) this Honourable Court may deem fit and just to grant. From what is derived from the affidavit sworn by Gasper Nyika, Counsel for the Applicant and counter affidavit sworn by James Thedory Mosshy, the 1 undisputed facts making the history of the application are as stated hereunder. The Applicant herein filed in this Court Commercial Case No. 53 of 2015 praying for various reliefs against the Respondents including payment of USD 5,326,791.54, Interest, Vacant possession of a mortgaged property, and order appointing Mr. Sadock Dotto Magai as receiver Manager with power to sell, lease, enter possession or collect the income of the property. On 6th July 2015, this Court (Hon. Mansoor, J.) entered summary Judgment following the Respondents' failure to seek leave to defend summary suit. Aggrieved with the summary judgment, the Respondents filed in the Court of Appeal of Tanzania, Civil Appeal No. 107 of 2015 challenging the summary judgment. On 24 December 2018 the Court of Appeal of Tanzania dismissed the appeal with costs and directed the Respondents to apply to set aside the decree of the High Court of Tanzania (Commercial Division) at Dares Salaam in Commercial Case No. 53 of 2015 if they so wished in accordance with the law. Following the Judgment of the Court of Appeal, the Respondents filed in this Court Miscellaneous Commercial Application No. 8 of 2019 seeking for an order granting them extension of time within which to file an application to set aside the order dismissing the Respondents Application for leave to appear and defend the suit in Miscellaneous Commercial Application No. 135 of 2015. On 5 April 2019, this Court (Hon. Phillip, J) dismissed the Application with costs. Following the dismissal order, on 16 September 2019, the Applicant herein filed in this Court an application for execution of the Judgment and decree in Commercial Case No. 53 of 2015 On 24 November 2020, the Respondents herein filed Miscellaneous Commercial Application No. 168 of 2020 seeking for orders, among 2 others, that this Court be pleased to hold that the trial Court had no Jurisdiction to enter summary judgment in Commercial Case No. 53 of 2015 and thus the decree sought to be executed is null and void. On 3 June 2021, a ruling was delivered whereby this Court allowed the Respondents' application and held that the Decree in Commercial Case No. 53 of 2015 is a nullity and void ab initio hence non-executable. The Applicant is aggrieved by this decision and intend to appeal to the Court of Appeal with the following grounds: (i) That the learned trial Judge erred in law in failing to note that she had no jurisdiction to set aside and reverse the Judgement and Decree of a fellow Judge of the same Court. (ii) The learned trial Judge erred in law in falling to note that the Commercial Court was functus officio as regards the Judgement and Decree in Commercial Case No. 53 of 2015. (iii) The learned trial Judge misconstrued the applicability of the provisions of Sections 38 and 95 of the Civil Procedure Code (Cap 113 R.E 2019) as they relate to the power of the Court to deal with matters related to execution of the decree. (iv) The learned trial judge erred in law by entertaining an objection that the decree subject to execution was incorrect in law. It is asserted in the Applicants affidavit that the intended appeal raises serious issues of law and an arguable case worth consideration by the Court of Appeal. In the Counter Affidavit, the Respondents disputed the grounds of appeal and deponed that the trial judge was properly moved, and that the trial Judge neither set aside nor reversed the Judgement of her fellow Judge but rather refused to authorize the execution of the purported Decree for being a nullity. In is further deponed in the Counter Affidavit that the Applicant did not raise any of the purported grounds during hearing of the Miscellaneous Commercial Application No. 168 of 2020, and therefore the envisaged grounds are afterthought. According to further contents of the counter affidavit, the grounds averred by the Applicant are flimsy and involve in substantial questions of law which are unworthy for consideration by the Court of Appeal. The application was argued by a way of Written Submissions. Submitting on the Law on Leave to Appeal the counsel for the applicant argued that the principles governing determination of an application for leave to appeal were stated in the case of British Broadcasting Corporation v. Eric Sikujua Ng'imaryo, Civil Application No. 138 of 2004, Court of Appeal of Tanzania at Dar es Salaam quoting some words at pages 6-7. The Applicant's counsel further made another quotation from page 7 of the cited decision which were quoted by their Lordships from another unreported Court of Appeal decision in Harban Haji Mosi and Shauri Haji Mosi Vs Omar Hilal Seif and Seif Omar, Civil Reference No. 19 of 1997 which stated: "Leave is grantable where the proposed appeal stands reasonable chances of success or where, but not necessarily, the proceedings as a whole reveal such disturbing features as to require the guidance of the Court of Appeal." It is further submitted by the Applicant's counsel that in Saidi Ramadhani Mnyanga v. Abdallah Salehe, [19961 TLR 74, the High Court of Tanzania, (Hon. Msumi, J.), granted the leave to appeal under the reason that the matter raised contentious issues of law and was a fit case for further consideration by the Court of Appeal. While avoiding to argue in detail on the grounds of the appeal, which would amount to prematurely arguing the appeal, the Applicant's counsel attempted to show a prima facie or an arguable case, to be determined by 4 the Court of Appeal by stating that it is arguable on whether the trial Judge had jurisdiction to set aside and reverse the Judgment and Decree of a fellow Judge of the same Court on grounds that the reliefs granted were questionable. He stated further that it is also arguable on whether the commercial court was functus officio with regards to the Judgment and Decree in Commercial Case No. 53 of 2015 and further, the Applicant intends to argue before the Court of Appeal that the learned trial Judge erred in the application of law on the powers of the executing Court in dealing with matters related to execution of a decree. The applicant's counsel stated further that it is an arguable case on whether the trial Judge was correct to entertain an objection that the decree subject to execution was incorrect in law. It is finally submitted by the Applicant's counsel that the Applicant has satisfied the requirements for leave to appeal to be granted, namely, that prima facie appeal has been shown alternatively, the Applicant has a good arguable case that there are grounds of appeal which merit serious judicial consideration and the matter raises contentious issues of law for consideration by the Court of Appeal. Accordingly, it is prayed by the Applicant's Counsel that leave to appeal be granted by this Court. In response to the Applicant's submissions, the Counsel for the Respondent adopted the contents of counter affidavit as part of the submissions. He had the same view as the applicant's counsel that in determining grounds for leave to appeal, the court must be satisfied that there is a primacies or arguable case on Appeal. However, the counsel disputed existence of any such prima facie case established by the Applicant. The Counsel opined that the Applicant has failed to advance plausible grounds for the Court to grant the Application for leave on the reasons that no prima facie appeal or an arguable case shown by the applicant since the Applicant just pinpointed the grounds of the intended appeal without explicitly stating how they show a 5 prima facie case and that Further, and that the Applicant didn't show how the grounds establish a prima facie case would be prematurely arguing the appeal. The Counsel supported this contention by citing the case of Fred Kweka and two others v. Zamada Abdillah Njema and another Miscellaneous Land Application No.449 Of 2020 (Unreported) quoting the following words. "A party intending to be allowed to appeal must demonstrate, with material sufficiency, that the intended appeal Carries an arguable case that merits the attention of the Court of Appeal". According to the Respondent's counsel, in line with the case of Fred Kweka (Supra) it can be clearly deduced that mere pinpointing of the grounds of the intended appeal does not amount to establishment fa prima facie case or an arguable appeal. In further arguments, the Counsel for the Respondent challenged the Applicant for having grounds 2.4.1 and 2.4.2 not part of the Ruling from which the notice of appeal originates. Due to this, the Counsel disqualified the intended appeal in present application from being an appeal that needs to be determined by the court of appeal. Addressing whether the grounds of the intended appeal raise a novel point of law in line with the case of British Broadcasting (supra) the Respondent's counsel submitted that the Applicant has failed to establish the novelty of the grounds of the intended appeal from which the present application lies, hence the whole Application lacks merit. Lastly, the Respondents prayed for this Application to be dismissed in its entirety with costs. Having gone through the submissions of the parties and their sworn statements in the affidavit and Counter Affidavit, the issue which features 6 1$-^ for determination is whether the applicant has established sufficient grounds to warrant leave to appeal to the Court of Appeal. Parties have correctly expounded the factors which should be established to warrant grant of leave to Appeal. It is not in dispute that leave to Appeal is a matter of discretion of the Court which needs to be exercised judiciously. See British Broadcasting Corporation supra where the relevant words as quoted in parties submissions states: "Needless to say, leave to appeal is not automatic. It is within the discretion of the Court to grant or refuse leave. The discretion must, however, be judiciously exercised on the materials before the court. As a matter of general principle, leave to appeal will be granted where the grounds of appeal raise issues of general importance or a novel point of law or where the grounds show a prima facie or arguable appeal see Buckle v Holmes 1926 ALL E.R Rep 90 at 91. However, where the grounds of appeal are frivolous, vexatious or useless or hypothetical, no leave will be granted." For the discretion to be exercised judiciously in granting leave to appeal, the following conditions have to be met by the applicant to justify granting of leave to appeal. These include; chances of success, existence of disturbing features in the proceedings, existence of point of law or point of public importance in the proceedings and existence of prima facie or an arguable appeal. The Respondent called for precise and detailed demostration of the merit of the grounds of the appeal in order to justify granting of leave to appeal. This have been the trend in our jurisprudence which has been recently relaxed to avoid premature determination of the grounds of appeal at the level of a court which is incompetent to do so. The relevant authority in 7 support of this position is the case of Jireyes Nestory Mutalemwa vs. Ngorogoro Conservation Area Authority, CAT, Application No. 154 of 2016 (Unreported) and The Regional Manager-TANROADS Lindi vs DB Shapriya and Company Ltd, Civil Application No. 29 of 2012 CA delivered on 11th Day February, 2021 (unreported). In Jireyes Supra, their Lordships Justices of Appeal stated: ". in applications of this nature, it is a well-established principle of law that the Court is not expected to determine the merits or otherwise of the substantive issues before the appeal itself is heard. We are reinforced towards that position by our decision in the case of The Regional Manager-TANROADS Lindi vs DB Shapriya and Company Ltd, Civil Application No. 29 of 2012 CA (unreported) in which we stated that:- "It is now settled that a Court hearing an application should restrain from considering substantive issues that are to be dealt with by the appellate Court. This is so in order to avoid making decisions on substantive issues before the appeal itself is heard...” The duty of the Court at this stage is to confine itself to the determination of whether the proposed grounds raise an arguable issue(s) before the Court in the event leave is granted. It is for this reason the Court brushed away the requirement to show that the appeal stands better chances of success as a factor to be considered for the grant of leave to appeal. It is logical that holding so at this stage amounts to prejudging the merits of the appeal [see Murtaza Mohamed Viran vs Mehboob Hassanali Versi, Civil Application No. 168 of 2014 and Victoria Real Estate Development Limited vs Tanzania 8 Investment Bank and Three Others, Civil Application No. 225 of 2014 (both unreported)]. From the aforesaid conditions, the most important factor in granting leave to appeal is the existence of arguable grounds of appeal being on facts or on point of law. The others also matter, but it is risk to delve into them without touching the merit of the grounds of appeal which may place this court at an appellate position. In this established position, the court shall consider the grounds for seeking leave in isolation of the submissions seeming to challenge the findings of the High Court. See Jireyes supra. Guided by the cited jurisprudence, I have examined the grounds of appeal without dwelling deep into the submission which touched their substantive context. The issues which surround the grounds of appeal are: - (i) That the learned trial Judge erred in law in failing to note that she had no jurisdiction to set aside and reverse the Judgement and Decree of a fellow Judge of the same Court. (ii) The learned trial Judge erred in law in falling to note that the Commercial Court was functus officio as regards the Judgement and Decree in Commercial Case No. 53 of 2015. (iii) The learned trial Judge misconstrued the applicability of the provisions of Sections 38 and 95 of the Civil Procedure Code (Cap 113 R.E 2019) as they relate to the power of the Court to deal with matters related to execution of the decree. (iv) The learned trial judge erred in law by entertaining an objection that the decree subject to execution was incorrect in law. From the above premise, whether the Court did not have jurisdiction to set aside and reverse the Judgement and Decree of a fellow Judge of the same Court, or whether the court was functus officio, or whether the Court misconceived the application of Sections 38 and 95 of the Civil Procedure 9 Code (Cap 113 R.E 2019) or whether grounds are not the question which needs to be resolved by this court or whether grounds 2.4.1 and 2.4.2 are not part of the Ruling from which the notice of appeal originates are all issues which this court is fit to resolve. But by their nature, they are arguable points at an appellate Court. From the foregoing, I find the intended grounds of appeal containing issues to be arguable grounds on appeal and this affirmatively answers the issue as to whether there is a sufficient ground established by the Applicants to justify leave to appeal. Having found that the applicant has sufficiently established sufficient grounds to warrant leave to appeal, I hereby grant the application for leave to appeal against the Decision of this Court in Miscellaneous Commercial Application No. 168 of 2020. No order as to costs. Dated at Dar es Salaam this 13th Day of January 2022. A T. REVOCATI MTEULE \ JUDGE /01/2022 COURT: Mgunya Advocate for the Applicant and Fatma Mgunya Advocate Holding Brief for James Theodory Musshy Advocate for the Respondent KATARINA T. REVOCATI MTEULE JUDGE 13/01/2022